Eichholtz: Effects of opioid overdose on third-party custody issues

July 27, 2016

By Elizabeth Eichholtz

Percocet, hydrocodone, fentanyl, morphine and oxycodone are various opioids and commonly abused prescription pain relievers. Another all too commonly abused opioid is heroin. Heroin use, however, is especially dangerous due to the highly addictive nature of the drug.

This danger is compounded by the lack of control over the purity of the drug injected and its possible contamination with other drugs (such as fentanyl). As heroin use, abuse and dependence has increased, so too have heroin-related overdose deaths. From 2002 through 2013, the Centers for Disease Control and Prevention notes that the rate of heroin-related overdose deaths has nearly quadrupled. Nancy K. Young, Ph.D., who recently testified in front of the U.S. Senate Committee on Homeland Security and Governmental Affairs, noted that no other substance abuse epidemic experienced in the United States has resulted in such high numbers of deaths of young parents than the current heroin and opioid epidemic. For those users who do not overdose, recovery is often difficult to attain and/or short lived. For all users with children, there are likely child custody implications.

The opioid abuse epidemic does not discriminate

Opioid use is a problem that spans all demographic groups. Studies from the Centers for Disease Control and Prevention show an increased use of heroin among women (specifically non-Hispanic white women), the privately insured, and people with higher incomes. Most heroin users have a polysubstance-use problem wherein they also ingest(ed) alcohol, marijuana, cocaine, or opioid pain relievers. The National Survey on Drug Use and Health estimates that people who are addicted to prescription opioids are 45 percent likelier to be addicted to heroin. Other studies have shown that prescription opioid use or dependence is the single greatest risk factor which can lead to heroin use. Some believe this can be attributed to the wider availability and lower price of heroin as compared to prescription opioids as an addiction worsens.

Opioid epidemic and child custody challenges

Opioid and heroin abuse or overdose commonly result in the temporary removal of a child from the custody of her natural parents; prevention of reunification with natural parents; or termination of parental rights. Thus, family law practitioners would be well suited not only to review the relevant statutes and case law involving custody and third-party custody proceedings, but to learn about (1) the realities of opioid and heroin use and abuse; (2) the impact on one’s ability to parent; and (3) the impact on the children of the abusers. This will help practitioners determine what evidence needs to be presented to the court to meet the philosophical burden of proof, often the “best interest of the child,” in any given proceeding.

Aside from actions to establish or modify child custody and CHINS proceedings, the result from increased heroin use and overdose for family law practitioners is an increase in third-party custody cases. The most common third-party custody proceedings include being named as a temporary or permanent guardian, a de facto custodian or third-party custodian, or petitioning for adoption.

Most families prefer, if possible, to place a child with a third-party family member rather than in the foster care system. Such proceedings are challenging, not only for attorneys facing a heightened burden of proof, but they are often emotionally burdensome for the petitioner(s). The third-party custody proceedings can put family members in a very difficult position of proceeding with a legal course they believe to be in a child’s best interest and risk ostracizing that child’s parent(s). In the event that a parent has died as the result of an opioid addiction, it is not uncommon in a third-party custody action to have several parties and/or intervenors to the case requesting custody of the child(ren).

Few counties across the country are lucky enough to have a specialized family drug court program. Thus, determining the appropriate court or venue will be imperative prior to filing a case for third-party custody in order to have the issues addressed in a timely fashion. In cases where one or both parents are deceased, the probate or juvenile paternity court will have jurisdiction to hear the matter. If there is an active DCS case, the juvenile court’s order will supersede any Superior or Circuit Court orders, so practitioners would be well advised to collaborate with the individuals involved in the DCS proceeding.

Knowing how you can you better assist your clients in cases involving prescription opioid or heroin use, abuse, or overdose will become increasingly important as this epidemic unfolds. Several steps you can take include the following:

1. Research statutes, burden of proof and case law in the various third-party custody proceedings and/or modification proceedings to properly advise your client(s) of the best case strategy;

2. Familiarize yourself with available and cost-effective substance abuse treatment options, including prescription medication to avoid relapse as well as inpatient care programs;

3. Learn about the alleged drug at issue; its half-life (for frequency of testing purposes) and any indicators of use;

4. Research drug testing facilities; available and best tests; testing costs; interpreting results; and other tools to monitor compliance with treatment;

5. Locate local mental health experts who specialize in substance abuse who can testify on your client’s behalf;

6. Become familiar with characteristics of heroin users and claimed sobriety;

7. Review statutes regarding how best to obtain disclosure of medical and mental health records;

8. Locate related criminal charges and access public information/transcripts; including probation records and contact the probation officer(s);

9. Locate parenting time supervision facilities; learn about each facility, what it offers, and the rates; and

10. Review the parties’ finances and insurance policies to plan how your proposal or settlement can be implemented.

The considerations will vary depending on which parent you represent. Nor is the above list exhaustive.•


Elizabeth Eichholtz is a family law attorney at Cohen & Malad, LLP. She can be reached at eeichholtz@cohenandmalad.com. The opinions expressed are those of the author.